By Karyn Maughan and Boyd Webb
Brigitte Mabandla, the justice minister, does not believe that her refusal to testify against Vusi Pikoli, the suspended national prosecutions head, should be held against her.
In an interview on Saturday, Zolile Nqayi, Mabandla's spokesperson, insisted that the minister chose not to take the stand against Pikoli because she believed her evidence "would add nothing" to the Ginwala Commission's inquiry into his fitness to hold office.
Mabandla had tried to stop Pikoli from arresting Jackie Selebi, the national police commissioner.
Asked if the prospect of being cross-examined about the events surrounding Pikoli's suspension - which Pikoli maintains was motivated solely by the government's desperate bid to protect Selebi - had played any part in Mabandla's decision not to testify, Nqayi was adamant: "No, it was not even a consideration."
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"The minister has supplied the [commission] with extensive written submissions and responded to every claim made against her by Mr Pikoli. She has also answered the questions asked her by the [commission]. There is no need for her to give evidence."
Though refusing to comment directly on Mabandla's absence from the government's list of witnesses, Frene Ginwala, the head of the commission, has made it clear that "any contested evidence to which there has been no response may attract a finding that the party not contesting that evidence accepts the correctness of that evidence".
Under normal rules of evidence, this would mean that Mabandla's failure to challenge Pikoli's testimony with her own will lead the commission to give more weight to Pikoli's version of the events surrounding his suspension.
Menzi Simelane, the director-general of the department of justice, this week admitted, under cross-examination by Wim Trengove, Pikoli's advocate, that he could not explain the circumstances under which Mabandla asked Pikoli to resign about two weeks after the Scorpions obtained arrest and search warrants against Selebi.
Questioning Simelane about the day President Thabo Mbeki suspended Pikoli, Trengove asked: "Do you know what the minster said to Mr Pikoli [that] Sunday at 5pm?"
"No," said Simelane.
"She said 'I want you to resign'. Did you not know that?"
"No. I don't know if that's what she said to him. As I said, I wasn't there," Simelane responded.
"Without taking up [Pikoli's] repeated offers to provide her with whatever other information she might require [about the case against Selebi], she concluded that he had to go," Trengrove said.
"If that's what she concluded …," Simelane said.
"Can you explain it?" Trengrove interjected.
Simelane's voice trailed off: "I can't explain it, so I'm not going to."
Simelane also failed to answer questions about whether it was he or Mabandla who had decided to deny the existence of a letter sent by Mbeki to Mabandla the day before she ordered Pikoli not to arrest Selebi.
He was also forced to admit that a statement he made under oath, in which he denied that the government interfered with Pikoli's "decisions to investigate and prosecute any person", was not true.
Pikoli's legal team has argued that Mabandla's "improper interference" in the state's case against Selebi amounted to a criminal offence.
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